Fletcher & Ors v Governor of HMP Whatton & Anor

The Secretary of State’s duty to provide indeterminate-sentence prisoners with a reasonable opportunity to demonstrate that they are no longer dangerous is a public law obligation implicit in the statutory scheme. It is not discharged by pointing to inadequate or competing resources. The court decides whether the provision made is sufficient, although it does not allocate resources or micro-manage provision.

Separate duties require rational resource allocation and compliance with published policy. A failure to explain a prisoner’s movement on a treatment waiting list may justify quashing the decision and requiring it to be taken again. Article 5 claims depend on the distinct Convention threshold and may fail even where the public law duty has been breached.

Three prisoners serving indeterminate sentences for public protection had passed their tariff dates and were waiting, in some cases for several years, to undertake the Healthy Sex Programme. The programme was on the critical path towards a Parole Board recommendation for release or progression to open conditions.

The Secretary of State accepted the existence of the public law duty recognised in R(James, Lee and Wells) v Secretary of State for Justice but argued that it had been discharged in light of available resources. The claimants also alleged irrational resource allocation, failure to follow policy, and breaches of articles 5(1) and 5(4) of the ECHR.

1. The claims succeeded in part. The Secretary of State was in breach of the public law duty to provide systems and resources giving the claimants a reasonable opportunity to demonstrate to the Parole Board that they were no longer dangerous. Delays of at least two years, with further delays of up to three and a half years, meant that the claimants had no realistic opportunity to progress without the programme.

2. The duty, derived from the statutory scheme in sections 224 and 225 of the Criminal Justice Act 2003, is not merely a rationality duty or an optional claim on competing public resources. The Secretary of State cannot rely on a lack of resources to avoid providing what is necessary to discharge it. The court does not determine the allocation of resources or direct the detailed management of courses.

3. The court accepted that there are also duties to allocate resources rationally and ordinarily to follow the Secretary of State’s own policy. The general challenge to the ranking system failed because the published policy was generally being applied, and the approach in R(Massey and Robinson) v HMP Whatton and Secretary of State for Justice was followed.

4. The Third Claimant’s position was different. The Secretary of State had not explained his movement down the waiting list or shown that the policy factors had been considered. His position on the list was quashed, and the decision had to be remade having regard to the relevant factors in the HSP Guidance.

5. The article 5(1) and 5(4) claims were dismissed. The court remained bound by R(James, Lee and Wells) and was not entitled to adopt the later approach in Duncan v Scottish Ministers. The failures established had not reached the threshold for Convention liability, although future delays might do so.

6. Declarations were granted concerning the public law duty and resources. No mandatory order was made at that stage. Relief was adjourned so that information could be provided showing compliance with the duty.

Not an appeal. The judgment determined claims for judicial review at first instance.